Books In Review

The Moral Tradition of
American Constitutionalism

A Tradition in Crisis?

The Moral Tradition of American Constitutionalism: A Theological
Interpretation. By H. Jefferson Powell. Duke University Press.
296 pp. $39.

Reviewed by Kenneth R. Craycraft, Jr.

H. Jefferson Powell wants the reader to take very seriously the title of
this thoughtful and thought-provoking book. While he thinks that it
might now be in a fatal state of crisis, Powell tries to make a case
that American constitutionalism, in its original genius and much of its
history, is a tradition according to his carefully argued definition of
that term.

Powell identifies four major antecedents to the moral tradition of
American constitutionalism—Enlightenment individualist moral
anthropology, Protestant civic republicanism, Anglo common law
reasoning, and practical political life before and under the Articles of
Confederation. And he makes a convincing case that while vestiges of the
latter three remained for a while, it is Enlightenment moral
individualism that has become the moral tradition in American
constitutional thought.

Nevertheless, he argues, with underpinning from the vestigial remains of
the other three antecedents, a kind of "American social morality"
emerged in law and adjudication from the mid-nineteenth to the mid-
twentieth centuries. This social morality, while primarily
individualist, was guided by a community of discourse—a community
embodied by lawyers, judges, and legislators—which saw the Constitution
not merely as positive law but as the foundation for "a tradition of
rational discussion" over disagreements. The Constitution created a
"space," i.e., a tradition, in which sustained rational legal argument
could be carried on. And it is this tradition of constitutionalism that
is in a grave—perhaps fatal—"epistemological crisis."

As a conceptual tool for analyzing American constitutionalism and its
current crisis, Powell sketches four essential elements of a
"MacIntyrean tradition," as outlined in Alasdair MacIntyre's Whose
Justice? Which Rationality? First, a tradition must be extended
over time. To evaluate a tradition of thought or human actions it is
necessary to locate them in a persistent historical narrative. Even the
very rationality a tradition uses to justify itself must be seen as a
development within the history of the tradition. Second, traditions are
embodied in discrete social contexts. While separate traditions might
share certain accidental elements, one cannot call those shared traits a
"tradition" in any interesting way. This is because, third, a tradition
is "fundamentally interpretive in nature," such that even its use of
accidental similarities will be peculiar to it alone. A MacIntyrean
tradition, explains Powell, is one that is united by "shared 'goods' or
'fundamental agreements.'" This does not mean that these fundamental
agreements do not have some degree of elasticity within the tradition,
but the progress of agreement will be framed within a persistent,
socially embodied, historical narrative.

The fourth aspect of a tradition, according to MacIntyre, is the
conceptual tool Powell most heavily relies on to make his case for a
moral tradition in American constitutionalism: "Traditions, rather than
being bastions of immobile stability, 'embody continuities of
conflict.'" That is to say, a tradition is a sustained intelligible
argument, based upon a shared rationality, which will necessarily
include internal conflicts, but of a kind that furthers the purposes of
the tradition, and helps it to overcome inconsistencies.

Powell thinks this fourth point is true but somehow paradoxical, and he
insists that it disqualifies MacIntyre's use of teleological language to
describe a tradition. If conflict is essential to a tradition, says
Powell, then one can hardly say that a tradition has some particular
telos toward which it is consistently directed. This point is
paradoxical, however, only because Powell overstates it in such a way
that one could no longer be talking about the same tradition. He says
that for MacIntyre, "even the most fundamental aspirations and
commitments of a tradition are subject to revision." Were this the case,
one certainly could not use teleological language, but then neither
could one call this a MacIntyrean tradition.

MacIntyre does not suggest that the fundamental aspirations of a
tradition are subject to revision, but rather that the particular
goods that would contribute to the tradition's fundamental
aspirations—its telos—are open to argument and conflict. As conflicts
are resolved or as they raise new animating questions, the tradition is
able to make "progress" towards its end. Moreover, there is no paradox
in affirming that a tradition is characterized by internal conflict. On
the contrary, by MacIntyre's reasoning authentic conflict or argument
can occur no place but within a particular tradition, since authentic
argument must necessarily share a common rationality, telos, and
narrative context. Thus, as he has indicated most clearly in Three
Rival Versions of Moral Enquiry, for one tradition to argue against
another, it is necessary conceptually to place oneself within
that rival tradition, else meaningful argument cannot really occur.
(MacIntyre calls this "constrained disagreement.")

Powell does rightly note that, according to MacIntyre, a tradition may
reach a point of "epistemological crisis," in which the tradition may
find itself unable to resolve internal conflicts in its own idiom and by
its own rationality, or to articulate coherently its own purpose or
goal. When this happens, the tradition will either emerge with a clearer
self-understanding and more coherent rationality, or disintegrate.
Powell thinks that one can identify a multifaceted moral tradition in
American constitutionalism, but argues that that tradition is now in a
condition that merits being called an epistemological crisis, one,
moreover, from which it is unlikely to emerge. Moreover, he argues that
insofar as the best we can hope for from politics is the dilution and
refraction of violence, Christians have no real stake in trying to
sustain this now nearly moribund tradition.

Certainly Powell is correct in identifying the dominant brand of
reasoning in American political and legal discourse, and he most
effectively argues that liberal individualism—despite its protestations—
is an all-encompassing and exclusionary vision of the good. "In
demanding the exclusion from public discourse of (nonliberal)
substantive accounts of the good, liberalism, of course, is enforcing
its vision of the good—of human life as the individual and private
pursuit of individually chosen goods."

Moreover, Powell is most perceptive in seeing that the current crisis in
American constitutionalism is represented by such opposite figures as
Robert Bork and critical legal studies scholar Mark Tushnet, neither of
whom sees the possibility of a constitutional tradition. For Bork the
Constitution is mere positive law, without reference to anything outside
itself, standing silent in the presence of all future laws that do not
explicitly contradict it. For Tushnet the individualist demands made in
the Constitution are inherently incoherent: they require both a limited,
weak government that respects the "rights" of individuals, and an
extensive, powerful government that uses violence to constrain
individuals from intruding on the rights of each other. As Powell
summarizes Tushnet: "The individualistic anthropology of liberalism
inspires a political theory aimed at restraining the threat to the
collectivity of [the goods of] individuals posed by their own
antagonistic self-interests."

But for all its merits, The Moral Tradition of American
Constitutionalism reads in some ways like a work in progress, with
a couple of nagging problems left unresolved.

First, Powell himself does not seem to be sure whether he wants to say
that American constitutionalism is a blend of the four historical
sources he discusses, or that they are four mutually exclusive competing
traditions, only one of which could have won the day. Sometimes he leans
toward the former view, and at other times he says that the
constitutional tradition is a thoroughly Enlightenment project from the
beginning. For instance, he points out that by the middle of the
nineteenth century judicial decisions contained internal tensions: "The
common law vision of discourse as tradition-dependent had prevailed over
the competing Enlightenment preference for rationalistic logic, but most
of the substantive values and commitments of the constitutional
tradition were thoroughly liberal," affirming radical individualism, and
so on. Powell's case for the former is not strong, but even it if were,
this by no means implies that two traditions are at work. It might only
mean that the winning tradition shares some accidental aspects of the
losing one. But, as noted above, the interpretive use of those aspects
would be (and indeed was) radically distinct in each respective
tradition. Put another way, by Powell's own MacIntyrean criteria can one
rationally say, "American constitutionalism for much of its history
explored (mainly) liberal moral principles through the use of tradition-
dependent (common law) modes of reasoning"?

Second, and more to the point of the book, Powell's positive theological
prescriptions tend to suffer from the very malady he wants to criticize.
He cites approvingly Stanley Hauerwas' criticism that the "primary
subject of Christian ethics in America has been America," and he warns
repeatedly that Christians ought not necessarily frame their own moral
reasoning around some mandate to preserve the moral-legal-political
institutions of liberal democracy. For instance: "The liberty of which
constitutionalism has spoken has never been Christian freedom, and so
the degeneration of the tradition's internal rationality is not itself
of grave importance to Christians." But Powell's own preference for
something like "social democracy" is not much of an improvement over the
kinds of ethics of which Hauerwas is so effectively critical.

Powell invokes John Howard Yoder in arguing for a kind of majoritarian
egalitarianism as an antidote to imperial judicial activism, on the
grounds that only the former will be able to channel the violence of the
state in the way that a previously more restrained judicial activism
once did.

Christians should respond to the current
constitutional crisis by joining others calling for a
renewed judicial deference for a distinctly theological
reason; majoritarian processes in the United States, at
least when policed by . . . limited judicial activism, . . .
increase minority leverage by increasing the variety of
forums and the variety of decisionmakers available to hear
and respond to deviant or weak voices (including the deviant
voices in Christian communities).

It is highly doubtful that majoritarianism would have such an effect.
Moreover, Powell does not give us any criteria for what distinguishes
judicial deference from limited judicial activism. Finally, and perhaps
most important, how does such a point of view contribute to the idea
that Christians are called to a radical commitment to Jesus Christ,
rather than to a radical commitment to a moral theory of equality? To
put it another way, how can this free church ecclesiology-cum-political
theory prevent the Church itself from affirming democratic pluralism as
a theological mandate (as the quote above suggests)? No doubt Jefferson
Powell would object strongly to a critique of his book that accuses it,
at the end of the day, of giving a theological justification for
dogmatic pluralism. So we can hope that the further development of his
thought will work toward convincing us that this is not so.

Kenneth R. Craycraft, Jr. is Assistant Professor of Theology at St.
Mary's University in San Antonio, Texas.